This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Tina Marie Schroeder, petitioner,





State of Minnesota,



Filed June 29, 2004


Hudson, Judge


Meeker County District Court

File No. K6-02-52


Mike Hatch, Attorney General, Bradford S. Delapena, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 Sibley Avenue North, Litchfield, Minnesota 55355 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414-3230 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant argues that her public defender’s previous representation of a co-defendant in a separate trial created a conflict of interest; she contends that she objected to the conflict of interest when she informed the trial court that her public defender failed to investigate certain information.  Appellant also argues that the trial court abused its discretion by failing to account for several mitigating factors that justify a downward durational departure.  Because (1) appellant’s statements to the trial court did not constitute an objection to the alleged conflict of interest; (2) an actual conflict of interest did not exist; and (3) the trial court did not abuse its discretion by imposing the presumptive guidelines sentence, we affirm.


David Smith was charged with attempted murder and with conspiracy to commit controlled-substance crime in the first degree for having a methamphetamine laboratory in his basement.  Using tracking numbers and chemical sales records, police traced one of the iodine jars found in Smith’s basement to appellant Tina Marie Schroeder.  Schroeder stated that co-conspirator Ronald Rausch paid her to purchase the iodine.  Schroeder understood the iodine would go to Rausch’s friends “Dave and Doreen” who would use it to manufacture methamphetamine.  Smith was represented by public defender Bradley Kluver and was convicted after a jury trial in August 2001.

In January 2002, the state charged Schroeder with one count of conspiring to commit controlled-substance crime in the first degree and a second count of aiding and abetting controlled-substance crime in the first degree was added at trial.  Public defender Bradley Kluver represented Schroeder throughout all of the proceedings, including her sentencing.

On the morning Schroeder’s trial was to begin, Schroeder informed Kluver that she wanted to discharge him and hire a private attorney.  The trial court gave Schroeder an opportunity to explain why she wanted to discharge Kluver, and Schroeder complained that she had only had “minimal communication” with Kluver and that it seemed like “. . . nothing was being followed through.”  Kluver also told the trial court that Schroeder had complained specifically about a telephone call that she placed to the Stearns County Sheriff “reporting suspicious activity at the David Smith Residence,” which Kluver never investigated.  After confirming that Kluver and the prosecutor were prepared to try the case, the trial court denied Schroeder’s request to continue the trial so she could hire a private attorney.  The trial court noted that trial had been scheduled for more than three months and there was not a “reasonable justification for delaying the trial.”

Following a two-day jury trial, the jury found Schroeder guilty.  The trial court denied Schroeder’s motion for a downward durational departure and sentenced Schroeder to the presumptive term of 122 months. 

            Schroeder filed a petition for postconviction relief, alleging that her conviction must be reversed because defense counsel had a conflict of interest and that her sentence must be reduced because the trial court erred by imposing the presumptive guidelines sentence.  At the postconviction evidentiary hearing, Schroeder testified that Kluver never explained that his previous representation of Smith may involve a possible conflict of interest.  Kluver acknowledged that Schroeder inquired about it at one of their conferences and that he indicated to her that there was no conflict.  Kluver testified that his practice was to refer out cases that involved conflicts of interest, but he did not see a conflict of interest in this case.  Kluver testified that he knew Smith had appealed his conviction and said that had Smith’s case been remanded for further proceedings, he could possibly have been assigned to represent Smith.  Kluver said that if representing Smith on remand had created a conflict of interest in another matter he was handling, he would have referred one of them out.  Finally, Kluver testified that he did not follow up on Schroeder’s anonymous telephone call to the Stearns County Sheriff because Schroeder’s participation in the call could not be verified, and he made a tactical decision that it would not be relevant to the issues in her case.

After the postconviction evidentiary hearing, the postconviction court denied all of Schroeder’s requested relief.  The postconviction court found that appellant failed in her burden of showing that Kluver had an actual conflict of interest that affected his performance in her case.  The postconviction court noted, “Mr. Kluver’s representation of Smith concluded upon Smith’s conviction . . . [and] Mr. Kluver was not appointed to represent [appellant] until after Smith was convicted.”  The postconviction court concluded that appellant failed to show “how any alleged deficiencies in representation by [Kluver] either adversely affected her case or fell below an objective standard of reasonableness.”  This appeal follows.



Appellant argues that Kluver’s representation of Smith (a co-defendant) in a separate trial created a conflict of interest that deprived her of her right to adequate and effective representation.  Specifically, appellant alleges that Kluver did not investigate her anonymous telephone call to the police because evidence of drug activity at Smith’s home would have further inculpated Smith with respect to Smith’s first-degree controlled-substance charge for producing methamphetamine.  Appellant also claims that the trial court erred by not conducting an examination into her alleged conflict-of-interest claim.  Therefore, appellant concludes, the postconviction court erred by not granting appellant a new trial.  We disagree. 

A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).  Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.

            The Sixth Amendment right to counsel includes “a correlative right to representation that is free from conflicts of interest.”  Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981); see also Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984) (“Representation of a criminal defendant entails certain basic duties,” including “a duty to avoid conflicts of interest”).  Regarding conflicts of interest, the Minnesota Supreme Court has stated that the Sixth Amendment right to conflict-free counsel “is not limited to cases involving joint representation of co-defendants . . . but extends to any situation in which a defendant’s counsel owes conflicting duties to that defendant and some other third person.”  State v. Brocks, 587 N.W.2d 37, 43 (Minn. 1998) (quotation omitted).  Normally, a defendant alleging ineffective assistance of counsel must prove prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Strickland, 446 U.S. at 694, 104 S. Ct. at 2068. 

“The burden of a defendant claiming ineffective assistance due to a conflict of interest depends on whether and to what extent the alleged conflict was brought to the trial court’s attention.”  Cooper v. State, 565 N.W.2d 27, 32 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  When a defense attorney informs the trial court of a probable conflict but “is forced to represent codefendants over his timely objection,” automatic reversal is required unless the trial court determines there is no conflict.  Mickens v. Taylor, 535 U.S. 162, 168, 122 S. Ct. 1237, 1241-42 (2002).  This standard presumes that the conflict that the defendant and “‘his counsel tried to avoid by timely objections to the joint representation,’ undermined the adversarial process.”  Mickens, 535 U.S. at 168, 122 S. Ct. at 1241 (quoting Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 1181-82 (1978)). In addition, trial courts must inquire about multiple representations when the trial judge “knows or reasonably should know that a particular conflict exists.”  Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S. Ct. 1708, 1717 (1980).  Trial courts do not have to conduct an inquiry every time there is a vague or unspecified possibility of conflict, but rather when “special circumstances” trigger a court’s duty to inquire.  See Mickens, 535 U.S. at 168-69, 122 S. Ct. at 1242. 

But where a defense counsel does not object to a possible conflict, “a defendant must demonstrate that ‘a conflict of interest actually affected the adequacy of his representation.’”  Mickens, 535 U.S. at 168, 122 S. Ct. at 1242 (quoting Sullivan, 446 U.S. at 348-49, 100 S. Ct. at 1708).  Although the defendant must prove adverse effect when the defendant’s counsel did not object, the defendant does not need to prove prejudice of a degree that, but for the defense counsel’s unprofessional errors, the result would have been different.  Mickens, 535 U.S. at 172-74, 122 S. Ct. at 1244-45. 

            Appellant argues that she is entitled to a new trial because she objected to her attorney’s successive representation in a way that should have alerted the trial court to the conflict.  In effect, appellant implicitly suggests that the more lenient Holloway standard (which presumes adverse effect) should apply because her complaints about Kluver’s performance were in some way equivalent to an objection by Kluver that he labored under a conflict of interest.  In what appears to be an alternative argument, appellant further contends that once she alerted the trial court to the conflict, the trial court should have conducted a Sullivan inquiry, and because the trial court failed to conduct such an inquiry, her conviction must be reversed.

            Courts have emphasized that an objection to a conflict by defense counsel is necessary because courts defer “to the judgment of counsel regarding the existence of a disabling conflict.”  Mickens, 535 U.S. at 167, 122 S. Ct. at 1241.  The Supreme Court has listed several other reasons why it is necessary that the defense counsel object to a conflict, noting that

[a]n attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.  Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.  Finally, attorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.


Holloway, 435 U.S. at 485-86, 98 S. Ct. at 1179 (citations, quotations, and footnote omitted).  Accordingly, it is an objection by counsel that triggers the Holloway standard.  Thus, appellant’s contention that her statements to the trial court are equivalent to an objection by Kluver is misplaced.  Here, Kluver told the trial court that appellant may want to hire her own attorney because appellant claimed that Kluver did not have enough contact with her and referred to an allegation that appellant thought Kluver should investigate a phone call she had made to Stearns County reporting suspicious activity at Smith’s residence.  Kluver’s statements to the trial court were plainly not an objection by him as counsel to a conflict of interest. 

Even if appellant’s own statements to the trial court were considered, they were too vague to trigger the court’s duty to inquire further.  Appellant informed the trial court of the possibility of discharging Kluver and hiring a private attorney by noting, “We’ve had minimal communication . . . maybe a phone call here and there . . . and it just didn’t seem like nothing was being followed through.”  We conclude that appellant’s statements were not an objection to a possible conflict and were too vague to trigger an inquiry as prescribed in Sullivan

Alternatively, appellant argues that even if she did not adequately object, this court should still reverse because Kluver had an actual conflict of interest that adversely affected his representation, as evidenced by the fact that there was a plausible alternative strategy that Kluver might have pursued were it not for the actual conflict.  We find no merit in this position. 

Appellant contends that Kluver had a conflict of interest because he previously represented Smith.  But Kluver did not have an actual conflict due to his past representation of Smith because Kluver’s representation of Smith ended approximately four months before Kluver was appointed to represent appellant.  Once Smith was found guilty and sentenced, Kluver’s representation of Smith ended.  Although Smith appealed his conviction, that matter was handled by a different attorney.  We acknowledge that Kluver’s ongoing obligation to Smith was to protect Smith’s confidences, but Kluver had no continuing obligation to Smith to refrain from presenting evidence that, if presented at Smith’s trial, would have undermined Smith’s defense.  Moreover, appellant presented no evidence that Smith confided to Kluver any information relevant to appellant’s case.

Nor did appellant meet her burden of proving Kluver’s alleged actual conflict had an adverse effect on his representation of appellant.  Appellant argues that there was a plausible alternative strategy Kluver could have presented; specifically, that she purchased the iodine without knowing it would be used for an illegal purpose and once she discovered that the iodine was used to manufacture methamphetamine, she contacted the authorities to report Smith.  But appellant fails to mention her earlier confession to a police officer, which was presented to the jury.  At trial the officer was asked, “[D]id [appellant] indicate why she purchased the iodine?”  The officer answered that the “jars of iodine would be going to Ronald Rausch’s friends, ah, a Dave and Doreen for the purposes of manufacturing methamphetamine.”  Later the officer testified:

Q:        Did you ask [appellant] if she knew what the purpose of buying the iodine was for?


A:        Yes.


Q:        And what did she say?


A:        She knew it was for the manufacturing of methamphetamine. 


(Emphasis added.)  Because appellant admitted to police that she knew the iodine would be used to manufacture methamphetamine, her alternative strategy would have directly contradicted her confession.  Appellant’s alternative theory was also inconsistent with another key aspect of her defense—that she did not know Smith.  Had Kluver presented evidence that appellant made the phone call she claims to have made, he would have provided the jury with evidence that appellant actually knew Smith, placing appellant in the very conspiracy from which she was trying to distance herself.  Finally, appellant’s phone call to the Stearns County Sheriff was not inconsistent with Kluver’s representation of Smith because Smith’s trial strategy was to admit the methamphetamine charge, which he did at trial, and attack the attempted-murder charge.  Accordingly, the postconviction court properly noted, “no evidence was presented as to how Mr. Kluver’s failure to present the proposed evidence would alter the outcome of the case, particularly in light of [appellant’s] confession that was presented to the jury.”

Because appellant’s and Kluver’s statements to the trial court about appellant hiring a private attorney and appellant’s statement that Kluver did not investigate her claim were not objections to a conflict of interest, and because Kluver did not have an actual conflict of interest, we affirm the postconviction court’s decision not to grant appellant a new trial.


            Sentencing decisions rest within the broad discretion of the trial court and will not be reversed absent a clear abuse of that discretion.  State v. Larson, 473 N.W.2d 907, 908 (Minn. App. 1991).  The trial court will order the presumptive sentence unless the case involves “substantial and compelling circumstances” to warrant a departure, in which case the trial court “may” depart.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only in a “rare case” would a sentencing court’s refusal to depart warrant reversal.  Id.

            Appellant argues that the trial court abused its discretion because it failed to account for several mitigating factors that justify a downward departure, in particular, appellant’s claim that she played a passive role in the offense and was cooperative with the police.  Appellant argues that mitigating factors must be considered and balanced against aggravating factors or reasons for non-departure.  The trial court found that no mitigating or aggravating circumstances exist and imposed the presumptive sentence.

            The trial court did not abuse its discretion in imposing the presumptive sentence and declining to make a downward departure.  The trial court noted that it did not see “any mitigating or aggravating circumstances in this particular case.”  Furthermore, the mere fact that a mitigating factor is present does “not obligate the court to place defendant on probation or impose a shorter term than the presumptive term.”  State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).  The trial court considered and addressed appellant’s argument that she played a passive role in the offense, by noting that

your attorney may claim that you played a passive role in this matter and that the methamphetamine would have been produced by David Smith with or without your assistance, the fact is that you did assist [David Smith] in [producing methamphetamine], and methamphetamine is becoming a scourge on rural Minnesota and you participated in that and by doing so you endangered the general public and you endangered yourself.  The legislature has determined that methamphetamine is one of the bad drugs that’s out here right now and they treat it very severely.


            We note also that the jury found that appellant aided and abetted Smith in the production of a substantial amount of methamphetamine by purchasing two one-pound jars of iodine to be used in its production.  In addition, other factors support the trial court’s refusal to grant a downward dispositional departure: appellant had a criminal-history score of three, part of which was attributable to a prior methamphetamine offense, and appellant was subject to an active warrant from Nevada for a probation violation.  The trial court does not need to provide a written explanation when it “considers reasons for departure but elects to impose the presumptive sentence.”  State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984).

Because the trial court did not abuse its discretion in rejecting appellant’s request for a downward departure, we affirm.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.